Suing Over a Work Injury in Virginia
When Virginia law lets an injured worker sue the employer, suing a third party such as a driver or equipment maker, and what to do if the employer has no workers' comp.
Short answer: Generally no. When the employer and employee are under the Workers' Compensation Act, the worker's rights and remedies under the Act exclude all other rights and remedies of the worker and family, at common law or otherwise. Va. Code §§ 65.2-307(A), 65.2-302, 65.2-805(A)
| Suing your employer | Generally no. When the employer and employee are under the Workers' Compensation Act, the worker's rights and remedies under the Act exclude all other rights and remedies of the worker and family, at common law or otherwise. An employer that fails to carry required insurance can be sued (see uninsured_employer). Owners and contractors that are 'statutory employers' of a subcontractor's worker are also liable for comp benefits. Section 65.2-307 as read states no intentional-injury exception; none is described here. |
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| Suing someone other than your employer | Yes. A workers' comp claim creates a lien for the employer on any verdict or settlement the worker obtains from another party responsible for the injury, and the employer is subrogated to the worker's rights and may sue the third party in its own or the worker's name. Any amount the employer collects beyond what it paid or owes is held for the worker, less a proportionate share of expenses and attorney's fees. The employer may not compromise its subrogation claim without approval of the Commission and the worker; if the worker receives settlement proceeds without satisfying the lien, the employer may take a credit against future benefits or sue to recover. Source: Va. Code § 65.2-309 |
| If your employer has no workers' comp | An employer that fails to carry required coverage faces a civil penalty of up to $250 a day (maximum $50,000) and, while out of compliance, is liable to an injured worker either for comp benefits or in a lawsuit for damages, where it cannot defend on the grounds of the worker's negligence, a co-worker's negligence, or assumption of risk. If the Commission finds the employer uninsured and the claim compensable, it makes a provisional and then final award paid from the Uninsured Employer's Fund. |
Where to get help in Virginia
More Virginia workers' compensation
- Filing a Workers' Comp Claim in Virginia
- How Much Workers' Comp Pays in Virginia
- Workers' Comp Settlements in Virginia
- Retaliation for Filing Workers' Comp in Virginia
- Appealing a Denied Workers' Comp Claim in Virginia
- All Virginia workers' compensation rules
FAQ
Can you sue your employer for a work injury in Virginia?
Generally no. When the employer and employee are under the Workers' Compensation Act, the worker's rights and remedies under the Act exclude all other rights and remedies of the worker and family, at common law or otherwise. An employer that fails to carry required insurance can be sued (see uninsured_employer). Owners and contractors that are 'statutory employers' of a subcontractor's worker are also liable for comp benefits.
Can you sue a third party for a work injury in Virginia?
Yes. A workers' comp claim creates a lien for the employer on any verdict or settlement the worker obtains from another party responsible for the injury, and the employer is subrogated to the worker's rights and may sue the third party in its own or the worker's name. Any amount the employer collects beyond what it paid or owes is held for the worker, less a proportionate share of expenses and attorney's fees. The employer may not compromise its subrogation claim without approval of the Commission and the worker; if the worker receives settlement proceeds without satisfying the lien, the employer may take a credit against future benefits or sue to recover.
What if my employer doesn't have workers' comp insurance in Virginia?
An employer that fails to carry required coverage faces a civil penalty of up to $250 a day (maximum $50,000) and, while out of compliance, is liable to an injured worker either for comp benefits or in a lawsuit for damages, where it cannot defend on the grounds of the worker's negligence, a co-worker's negligence, or assumption of risk. If the Commission finds the employer uninsured and the claim compensable, it makes a provisional and then final award paid from the Uninsured Employer's Fund.
General legal information, not legal advice. Laws change and local rules can differ; check the linked official source or talk to a lawyer about your situation.